With the trial date of Jay Palmer’s harassment and retaliation lawsuit against Infosys just two weeks away, an attorney representing Infosys on Monday filed a court document aimed at persuading the federal judge in the case to disallow evidence relating to the alleged visa fraud that compelled Palmer to file his whistleblower claim in the first place.
In what appears to be a last-ditch effort to avoid having any information regarding its compliance with U.S. visa law presented in open court, Infosys filed an objection in which it cited 13 exhibits that had been submitted by Palmer’s attorney, Kenny Mendelsohn. Those exhibits include email correspondence between Infosys in-house attorney Jeffrey Friedel and Linda Manning, the second Infosys whistleblower; the whistleblower report filed by Marti Harrington, the third Infosys whistleblower; internal guidance on B-1 visa invitation letters and “Do’s and Don’ts”; and internal emails regarding Infosys employees on B-1 visas. Infosys argued the inadmissibility of the documents this way:
These documents do not relate in any way to how Infosys treated the plaintiff. Theplaintiff apparently intends to offer these documents to prove that Infosys was not in compliance with the visa laws of the United States. However, whether Infosys was in compliance with the visa laws of the United States is not relevant to any of the [harassment and retaliation] claims asserted by the plaintiff in this case. … To the extent the court concludes that there is some evidence in these documents relevant to the plaintiff’s claims, their probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury as to the issues that it should decide. This case is about how Infosys treated the plaintiff, not whether it is in compliance with the visa laws. If these documents are admitted into evidence there is a substantial risk that the jury will mistakenly believe it is to decide whether Infosys violated any visa laws.
Mendelsohn will file a response to the objection with the court by Aug. 13. I spoke with him on Monday night to get a sense of his assessment of Infosys’ objection. Here’s what he had to say:
Infosys doesn’t want the information regarding the visa violations to come out, and they’re trying to hide all of that from the public. I believe it’s clearly relevant, because it shows their motivation for wanting to hurt Jay Palmer, and it’s consistent with everything I’m seeing. The people who participate in the crimes, or help cover up the crimes, or turn the other cheek to the crimes, stay with the company and get promotions and have all the benefits of employment. And the ones that raise any issues regarding the violations get punished. It’s not just Jay Palmer, but Linda Manning and Marti Harrington as well. It’s typical of Infosys. You see two Infosyses: One is the one that will come out and publicly chastise Jay Palmer and accuse him of being a liar; and there’s another one that doesn’t want the facts to really come out.
The Rules of Evidence provide that evidence of wrongful conduct and bad acts are admissible to show knowledge, intent, and motive, which is exactly the reason why this comes in—to be able to show why Infosys did this. What Infosys wants to try to do is try the case in a vacuum, and not let it come out. But this shows the motive of why they would go after him and attack him the way they did, because the violations are enormous, and can affect their whole business model. It could cause them to lose their visa privileges; it could affect them with their stockholders.
Mendelsohn went on to say that none of this came as a surprise:
I’ve been preparing for this. I’ve known all along that Infosys doesn’t want the facts to come out in a public forum. Think about it. If Jay had reported that Infosys was cutting his lunch break short by 15 minutes, nobody in the world would believe he was placed on the bench and cut out of the system because he made that complaint. But when you understand that he has reported this to the federal authorities, that he is still a cooperating material witness, you understand that they’re not going to let him get near one of their facilities. That’s why they don’t want him on a job; that’s why they don’t want him to have computer access, because, in my judgment, they’re still violating the law, and they don’t want Jay to get near it, because he will report it. It’s really pretty simple.
If he were the judge, Mendelsohn said, this is how he would handle Infosys’ objection:
What I would do is say, “I’m going to let it in, but I will give a qualifying instruction to the jury,” which is common in my world. I would tell the jury, “Ladies and gentlemen, I’m letting in this evidence about visa violations, and tax violations, and I-9 violations. It’s not for you to decide whether they actually violated the law, but it is admissible for Mr. Palmer to try to show that they were motivated and intended to retaliate against him, and to cause him emotional distress.” That’s what I think the judge will do. I feel very confident about it; I guess my only hesitation is, I ain’t the judge. But I don’t think there’s any question about the law on it. I think it’s just an attempt by Infosys to try to prevent the facts from coming out.
Separately, I spoke with Mendelsohn about an Indian media report on Monday that according to Infosys, some of the emails that Palmer submitted as evidence appear to have been altered. I can tell you that over the past 18 months that I have been covering this case, I have found Mendelsohn to be extraordinarily easygoing and difficult to ruffle. But that report clearly incensed him. I asked for his response, and this is what I got:
My response is Jay Palmer did not alter or change any documents. Infosys is the one who controls all the documents in the server, and they’re the ones who were in the position to have altered and taken stuff out. The other thing I would say is, remember, this is the same company that we now know for sure falsified welcome letters [submitted as part of the B-1 visa application process] to the United States Consulate, and committed perjury in their Labor Condition Applications. So if you want to judge the credibility of it, consider the source. You have Infosys, who we know is a liar and a perjurer that has falsified documents to the United States; and you have Jay, and all he did was report crimes. So we’ll let the public decide, and we’ll let the jury decide who to believe.
Infosys did not respond to a request for comment.